where the attention of the court below was not specifically called to the grounds of the objection.

We have read the evidence with care, and find it very conflicting upon every material question, except the location of the place where the accident took place, and the fact that the train was running at a rate in excess of that allowed under the city ordinance. The appellee in his evidence shows that he approached the track carefully, driving in a slow walk; that his hearing and sight were good, and the movement of his wagon in no respect interfered with either; that a number of freight cars stood on the side track east of the crossing, and extended out into the street, so that it was impossible to see the approaching train until he was right on the main track; that, although he listened, he did not hear the whistle sound, the bell ring, or the cars run; that he looked and listened attentively while approaching the track; that he knew that a great many trains were run over the road every day, but did not know the time of any of them; that from that point the railroad curved to the south; and that he had never crossed the road at that point before. The testimony given by the plaintiff was, to some extent, corroborated by other evidence. We regard the evidence as sufficient, under the authority of Railway Co. v. Buck, (Ind. Sup.) 30 N. E. Rep. 19, and Railway Co. v. Harrington, Id. 37, to make out a case in favor of the plaintiff. Judgment affirmed. (131 Ind. 183)

SINN V. KING.

(Supreme Court of Indiana. April 20, 1892.) BOUNDARIES-ACQUIESCENCE IN SURVEY-REVIEW ON APPEAL.

1. In ejectment, where the quarter section of land which included the disputed territory contained 67 acres more than the required number, and no subdivisional survey of such quarter section was made until 1883, when the corners were established by the county surveyor at the instance of defendant, his failure for three years to appeal from such survey made it conclusive evidence of the true location of the dividing line. 2. Where the evidence was conflicting, a finding in favor of plaintiff will not be disturbed.

3. Where land was wild and unfenced, and defendant's adverse possession was in dispute, a finding in favor of plaintiff will not be disturbed on appeal.

Appeal from circuit court, Brown county; M. R. KEYES, Judge.

Action by William C. King against Fred. erick Sinn to eject defendant from, and to quiet plaintiff's title to, certain land. From a judgment for plaintiff, defendant appeals. Affirmed.

Francis

W. C. Duncan, for appellant. T. Hord, M. E. Emig, R. L. Coffey, and N. H. Franklin, for appellee.

MILLER, J. This is a contest over a disputed boundary line, and involves the title to 16% acres of land. The case is before us on the weight of evidence, all other questions being waived by the failure of counsel for appellant to discuss them in his brief. The quarter section of land, which includes the disputed territory, contains some 67 acres in excess of the required number,

and each of the parties claim a portion of this excess. The appellant insists that this excess should be apportioned to each subdivision of the quarter section; the appellee, that the excess should go to the northern and exterior tier of lots. It seems that no subdivisional survey of the quarter section was made until the year 1883, when the corners were established by the county surveyor, at the instance of the appellant. This survey not having been appealed from, it was during the period of three years prima facie, and after that time conclusive, evidence of the true location of such dividing line, as between the parties to such survey, and all persons claiming under them, so far as that could be determined by a survey. Rev. St. 1881, § 5955; Herbst v. Smith, 71 Ind. 44; Riggs v. Riley, 113 Ind. 208, 15 N. E. Rep. 253.

The appellant insists that this survey does not affect the title acquired by 20 years' adverse possession of the land in dispute by himself and those under whom he claims title. Without discussing or deciding the legal question involved, it is sufficient to say that the land in dispute was wild and unfenced, and that the fact of such adverse possession was disputed by the appellee, and the finding of the court upon that point cannot, at this time and place, be successfully controverted.

The appellant also contends that after the survey was made, and during the three years allowed him for appeal, the surveyor who made the survey dotted on the plat of the survey the line claimed by the appellant, and gave him a statement in writing of the width, in rods, of the disputed strip of land; that the appellant went to the appellee, and they cut a grapevine supposed to be a rod long, and with it measured off and divided the excess of land; that, in pursuance of this agreement and grapevine measurement, the appellant took possession of his portion of the land, and waived his right of appeal. We have recently held that such an agreement, with reference to a disputed boundary, was founded upon a sufficient consideration, and enforceable. Horton V. Brown, 29 N. E. Rep. 414. The appellee, while admitting this measurement, denies that it was to settle the dispute as to the boundary line, but simply to ascertain if some trees about to be cut were in the disputed territory. The evidence upon this question was conflicting, and we cannot interfere with the conclusion arrived at by the trial court. Judgment affirmed.

(132 Ind. 235)

HAXTON et al. v. MCCLAREN.1 (Supreme Court of Indiana. April 23, 1892.) TRUSTS-POWER TO VACATE EXECUTION EVIDENCE-ESTOppel-Liability of Trustee. 1. Where a father delivered notes to his son in trust to be collected, and part of the proceeds paid to his daughter, and the son accepted the trust, the notes were no longer a part of the father's estate, and were not affected by a wil making a different disposition of them.

2. By the will the son was made executor, and he turned the trust property over to the estate after his father's death. In an action by the daughter against him to enforce the trust, the evidence of its creation was conflicting.

'Rehearing denied.

Held, that a verdict for her should not be disturbed.

3. There was evidence that the father had complained that the son had suppressed correspondence between the father and daughter. In rebuttal the son attempted to show that he had told his daughter to write all letters which her grandfather might wish, but there was no offer to show that the grandfather knew of this, and it was not claimed that the daughter was present. Held, that the evidence was properly excluded.

4. Where it was claimed that the son had collected part of the trust fund, and converted it to his own use, his assessment lists, covering the period and showing an increase in his personal property, were admissible, as tending to show that he had so collected and converted such funds, but the weight of the evidence was for the jury.

5. A witness was called to prove that the father was of unsound mind, and she testified to several remarks by the father tending to show the condition of his mind. On cross examination she was asked: "What did you hear him say imputing that any one had stolen his tobacco?" Held not incompetent, as calling for the opinion of the witness.

6. Though the daughter recognized the validity of the will, which bore date before the trust, that did not preclude her from claiming the trust property, since the will only operated on property owned by the father at his death.

7. The court charged that, in determining whether the trust existed, the jury should consider the property the father had at the time; what previous disposition of property, if any, he made to any of his children; all the circumstances surrounding the alleged agreement; and any acts or declarations by the son with reference to the trust. Held, that this correctly stated the law, and was not prejudicial to the son.

8. Where the son was made defendant, both in his individual capacity and as executor also, for the purpose of enjoining a distribution of the funds under the will, and the whole theory of the complaint was that the fund did not belong to the estate, but was a trust fund, it was not error to refuse to render judgment against him as executor.

9. Where the trustee had divested himself of the trust fund, the beneficiary could either follow the fund or proceed against the trustee.

Appeal from circuit court, Owen county; G. W. GRUBBS, Judge.

Action by Rebecca McClaren against John Haxton and Alexander C. Haxton in their individual capacity and as executors of Richard Haxton, deceased, to enforce the provisions of a trust. From a judgment on a verdict for plaintiff, defendants appeal. Modified.

Instruction No. 9, given on the court's own motion, was as follows: "In determining whether the alleged disposition of property in question was made by said Richard in trust for the plaintiff and the persons named, you should take into consideration what amount of property, if any, said Richard had at the time; what previous disposition of property, if any. he had made to his children, or any of them; all the circumstances surrounding said alleged agreement and transfer; his acts and conduct, if any, with reference thereto, either before or after said time; also any acts or declarations of the de. fendants, or either of them, with reference to said alleged agreement and trust; any payments by them, or either of them; any recognition by them, in words or acts, of the existence of such trust; and all other circumstances in evidence tending to es tablish the execution of a trust, as insisted V.31N.E.no.1-4

upon by plaintiff." The defendants claimed that this instruction was favorable to plaintiff only, and failed to recognize their rights.

Inman H. Fowler and Wm. A. Pickens, for appellants. Willis Hickam and David E. Beem, for appellee.

COFFEY, J. This was an action in the Owen circuit court by the appellee against appellants, John Haxton and Alexander Haxton, in their individual capacity and as executors of the last will of Richard Haxton, deceased, to enforce the provisions of an alleged trust. The complaint alleges substantially that Rebecca McClaren, John Haxton, and Alexander C. Haxton are the children of Richard Haxton, now deceased; that on the 10th day of January, 1883, Richard Haxton had money and notes amounting to $4,000; that the notes were executed to him by his son John Haxton; that they were then due, and drawing 8 per cent. interest; that said Richard, desiring and intending to make a final disposition of his said property, and to part with his title thereto, transferred and delivered the same to appellant Alexander C. Haxton, for the following uses and purposes, to wit, said Alexander C. was to proceed at once to collect all of said notes; that out of the proceeds he should pay to appellee, Rebecca McClaren, the sum of $1,000, and appropriate to his own use and benefit a like amount, pay over to each of five named grandchildren $25, and out of the remainder of said money pay to said Richard, from time to time, as necessity might require, and expend for his benefit, such sums as said Richard might need for his reasonable personal expenses, outside of his general support, for which other provision had been made, and whatever balance of said money should remain in the hands of said Alexander at the death of said Richard, after | complying with the provisions aforesaid, should be equally divided between said Alexander C. and said Rebecca ;-that said John, being present when said arrangement was made, consented thereto, and agreed to pay said notes to said Alexander C. for said uses; that said Alexander C., for himself and on behalf of this plaintiff, being authorized by her so to do, accepted said notes and money from said Richard, took the same into his possession, and agreed to comply with the above condi. tions; that thereafter said Alexander collected of said notes a large sum, to wit, $2,500, being more than enough to pay the beneficiaries their several amounts; that in part performance of his trust he paid to the plaintiff $190, and to each of three of the grandchildren $25, to wit, Sabina Haag, Louisa Dack, and Charles McClar en; that on the 17th day of August, 1888, said Richard died; that before said Richard's death, to wit, in January, 1884, Alexander repudiated his said trust, and, though often requested, failed and refused to pay to the plaintiff any further sum of the said money; that at the death of said Richard said Alexander had remaining in his hands of said fund the sum of $3,000, and also one of the notes of said John which had been turned over by said Rich

self personally liable to the appellee, and she had her election to either follow the property or proceed against him personally. Perry, Trusts, §§ 828-843; Pearson v. Moreland, 45 Amer. Dec. 321; Garrigus v. Burnett, supra; Kinloch v. l'On, 26 Amer. Dec. 196. Taking the inventory made by the appellants as executors of the will of Richard Haxton as represent

sory notes executed to him by John Haxton, with an agreement made at the time that the notes should be collected at once, and that out of the proceeds Alexander should retain $1,000 for his own use, and should pay over to the appellee $1,000. It was also agreed that Alexander should retain $1,000, and pay whatever personal expenses Richard should incur during his life, and at his death, if any portion of this sum remained unexpended, it should be equally divided between Alexander and the appellee. The appellants and the appellee are the only children of Richard Haxton. In part performance of the trust. Alexander paid the appellee the sum of $190, but having discovered a will executed by Richard Haxton, which made a different disposition of his property, he refused to pay her any further sums. At the death of Richard Haxton, which occurred in the year 1888, the appellants probated this will, and turned the trust fund over to the estate. They, being the executors of the will, made an inventory of the trust fund, and charged themselves with it as executors. The inventory, which consists principally, if not entirely, of the trust fund, amounted to $3,821.67.

The evidence on behalf of the appellants tended to prove that no such trust as that claimed by the appellee was ever created, and that at the time of its alleged creation Richard Haxton was a person of unsound mind, and incapable of contracting. The jury, however, believed the evidence introduced by the appellee, and found, not only that the trust was created as alleged in the complaint, but also that Richard Haxton was at the time of sound mind. Of course, we are not expected to disturb this finding, as there was evidence tending to support it, and we must for this reason treat the case throughout as one in which the trust was created under the terms and limitations fixed by the agreement between the parties at the time of its creation. Under the terms of that agreement it was the duty of Alexander C. Haxton to collect the notes turned over to him by his father, Richard Haxton, and pay his sister, the appellee, $1,000 of the proceeds. It was his further duty, as such trustee, to pay over to her, upon the death of Richard, her portion of the $1,000 not expended during his life. In violation of these duties he repudiated the trust during the life of his father, and upon his death divested himself of the title and control of the fund as trustee, by transferring it to the executors of the will of Richard Haxton. It is true the appellee might have followed the fund in the hands of the executors, but she was not bound to do 80. By divesting himself of title to the trust property, and vesting the title in another, Alexander C. Haxton rendered him

hand at the time of his death, and it certainly tends to prove the fact that the damages assessed by the jury are not excessive. We are unable to say that the verdict of the jury is not supported by the evidence, or that there was error in the amount of the recovery.

On the trial of the cause the appellants propounded to one Marietta McIndo, a witness called on their behalf, the following question: "State to the jury what, if anything. John Haxton, your father, ever said to you with reference to writing any or all letters or other writing for your grandfather, Richard Haxton, which he, your grandfather, might request you to write. To this question the court sustained an objection. There was evidence introduced by the appellee tending to prove Richard Haxton had complained that correspondence between him and the appellee had been suppressed by the ap. pellants. As rebutting this evidence, they sought to prove by an answer to the above question that the appellant John Haxton had told the witness to write any and all letters that her grandfather, Richard Haxton, might request her to write. There was no offer to prove that Richard Haxton was present at the conversation, or that he ever had any knowledge of it, and it is not claimed that the appellee was present. The whole inquiry was remote from the material issue between the parties. It is difficult to perceive how the fact that the appellants did or did not suppress correspondence between Richard Haxton and the appellee could throw any light upon the question as to whether the trust set upon in thecomplaint existed, or as to whether Alexander Haxton, the trustee, was liable to account to the appellee for trust funds But, aside from its remoteness, the matter sought to be elicited was, we think, hearsay. It consisted of a conversation between one of the appellants and the witness, in the absence of the appellee, and could not bind her. If the trust did, in fact, exist, nothing that could be said or done, either by Richard Haxton or the appellants, or all of them together, in her absence or without her consent, could in the least affect her rights under the trust. We do not think the court erred in sustaining an objection to this question.

The appellee was permitted by the court to read in evidence to the jury the assessment lists of the appellant Alexander C. Haxton for the years 1879 to 1886. It was contended by the appellee that Alexander had collected at least a portion of the money due on the notes delivered to him by his father, Richard Haxton, in trust, and bad converted the same to his own use. These assessment lists were introduced by the appellee to prove that, dur

ing the period which they covered, his personal property had greatly increased, from which she claimed the inference arose that he had collected the money on the notes held in trust, and included it in his individual taxable property. The objection made to this evidence is as to its strength, and not as to its admissibility. It was certainly admissible for the purpose for which it was offered, but its weight was for the jury.

The appellants called as a witness Sarah Medaris, by whom they sought to prove that at the time of the creation of the trust in question Richard Haxton was a person of unsound mind. On her examination in chief she testified to many conversations she had with him, as well as to many remarks she had heard him make, tending to show the condition of his mind, and upon cross-examination the appellee put to the witness the following question: "What did you hear him say imputing that any one had stolen his tobacco?" To this question the appellants objected, upon the ground, as stated to the court at the time, that the question asked the witness to put a construction upon the language of Richard Haxton, and interpret to the jury what his words and language meant, and to give an opinion in that regard, and that the answer thereto, if the question were answered, would only be the expression of an opinion of the witness, and that the question and answer thereby sought to be elicited are an invasion of the province of the jury. The witness answered: "I never heard him say anything imputing stealing." ever else may be said of this question, it is certainly not subject to the objection urged against it. It calls for the language of Richard Haxton upon a particular subject, and not for the witnesses' opinion of the language. Moreover, the answer was of such a character as to show conclusively that the appellants were not harmed either by the question or

answer.

What

The appellants introduced in evidence the papers and record in an action brought by them in the Owen circuit court, as executors of the will of Richard Haxton against his heirs and legatees, to construe said will. To that action the appellee was a party, and filed an answer consisting of the general denial. Upon the subject of this record the appellants asked the court to instruct the jury, in substance, (1) that if she appeared and defended against that action, and interposed no objection to the execution of the will by the executors after the same should be construed by the court, such fact might be considered, in connection with all the other facts and circumstances in the case, in determining whether or not she and the defendants were recognizing the will and acting upon its provisions; (2) that if she appeared to that action, and interposed no objection to the execution of the will and the disposition of the property therein bequeathed, as provided thereby, when construed by the court, such fact was proper to be considered in connection with all the facts and circumstances in the case, in determining whether or not any such ar

as

rangement, agreement, or contract alleged in the complaint for the distribution of the property and estate of Richard Haxton, deceased, was ever made. The will of Richard Haxton, a construction of which was sought by the appellants as executors, bears date long anterior to the creation of the trust set up in the complaint. We have been unable to perceive any connection between the suit to construe that will and the matters involved in this suit. The appellee does not now deny the validity of the will. She claims in this suit that the property in controversy does not belong to the estate of Richard Haxton, and therefore it is not affected by the will. The controversy here is over the existence of the trust set up in the complaint and will of Richard Haxton, and its construction could not by any possibility throw any light upon that controversy. Nor does the fact, if it be a fact, that the appellants and appellee all recognize the validity of that will, and have no objection to its provisions, affect the question before us, for it can only operate upon property owned by Richard Haxton at the time of his death. The question as to whether the trust now in controversy did or did not exist was in no sense involved in the action of the appellants as executors, to construe the will of Richard Haxton. For these reasons there was no error committed by the court, in our opinion, in refusing these instructions.

We think instruction No. 9, given by the court to the jury, states the law correctly, and that it is not open to the criticism to which it is subjected by counsel for the appellants in their brief.

The court was in error when it instructed the jury that the appellants had jointly answered the complaint, when in fact their answers were several, but such error could not possibly prejudice the rights of the appellants. A judgment will not be reversed on account of an erroneous instruction which does not injuriously affect the rights of the party complaining. Perry v. Makemson, 103 Ind. 300, 2 N. E. Rep. 713; Wolfe v. Pugh, 101 Ind. 293; Rev. St. 1881, § 658.

Nor did the court err in refusing to render judgment against the appellants in their capacity as executors of the will of Richard Haxton. The complaint proceeds upon the theory that they are liable individually, and they were made parties in their fiduciary capacity for the sole purpose of obtaining an injunction against them to prevent a distribution of the funds in controversy among those entitled to share under the will. There is nothing in the complaint upon which a money judgment against them as executors could be based, for the whole theory of the complaint is that this fund does not belong to the estate, but is a trust fund held by Alexander C. Haxton at the time of Richard Haxton's death, for the use of the appellee and others.

We have gone carefully over all the questions presented for our consideration by the appellants, and find no error for which the judgment as to Alexander C. Haxton should be reversed. But the judgment as to John Haxton cannot